DRED SCOTT CASE

I.389.1

DRED SCOTT CASE, The (IN U. S. HISTORY). I. ORIGIN. In 1820 slavery was prohibited in the province of Louisiana, north of latitude 36° 30', by the Missouri compromise, an act of congressional legislation; in 1846-50 it was attempted to extend this congressional prohibition to all the territory acquired from Mexico; this attempt was defeated by the compromise of 1850, by which congress refrained, and ordered the territorial legislatures to refrain, from meddling with the subject of slavery in the new territories; and in 1854 the abrogation of the Missouri compromise, leaving the people of each territory to decide the question of freedom or slavery for themselves, began the Kansas struggle, which, in 1856, had gone far enough to show that free state immigration would always overwhelm slave state immigration in a contest of this kind. The question of slavery had come to overshadow all others in politics, and the advocates of its extension and of its restriction had begun to exert every means to obtain control of all departments of the government. The former held the presidency and the senate, while the latter, under the name of anti-Nebraska men, had just gained control of the house; the Dred Scott case, which had been in the federal courts since 1854, was now to be the test of the affiliations of the supreme court. (See COMPROMISES, IV., V.; ANNEXATIONS, I.; WILMOT PROVISO; KANSAS-NEBRASKA BILL; SLAVERY; DEMOCRATIC-REPUBLICAN PARTY, V.; REPUBLICAN PARTY, I.)

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—II. FACTS. In 1834 Dred Scott was the negro slave of Dr. Emerson, of the regular army, who took him from Missouri to Rock Island, in Illinois, where slavery was prohibited by statute, and thence, in May, 1836, to Fort Snelling, in Wisconsin, or upper Louisiana, where slavery was prohibited by the Missouri compromise. In 1836 Dred married Harriet, another slave of Dr. Emerson, and in 1838 Dr. Emerson, with his slaves, returned to Missouri. Here Dred, sometime afterward, discovered that his transfer by his master to Illinois and Wisconsin had made him a free man, according to previous decisions of the Missouri courts; and in 1848, having been whipped by his master, he brought suit against him for assault and battery in the state circuit court of St. Louis county, and obtained judgment in his favor. On appeal, the supreme court of Missouri, in 1852, two justices in favor and the chief justice dissenting, reversed the former Missouri decisions, refused to notice the Missouri compromise or the constitution of Illinois and remanded the case to the circuit court, where it remained in abeyance pending the argument and decision in the supreme court of the United States.

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—III. PLEADINGS. Soon after the hearing in the state supreme court, Dr. Emerson sold his slaves to John F. A. Sandford, of the city of New York. On the ground that Dred and Sandford were "citizens of different states," of Missouri and of New York, suit against Sandford for assault and battery was at once brought in the federal circuit court for Missouri. Here Sandford, at the April term of 1854, pleaded to the jurisdiction of this court, on the ground that plaintiff was not, as alleged in the declaration, a citizen of Missouri, but "a negro of African descent: his ancestors were of pure African blood, and were brought into this country and sold as negro slaves." To this plea Dred demurred, that is, claimed judgment and acknowledgment as a citizen, even on defendant's own showing, and the demurrer was sustained. Sandford, answering over, then pleaded in bar to the action that the plaintiff was his negro slave, and that he had only "gently laid hands" on him to restrain him, as he had a right to do. The court instructed the jury that the law was with the defendant; plaintiff excepted; and on the exception the case went to the United States supreme court, where it was argued at December term, 1855, and again at December term, 1856, but judgment was deferred until March 6, 1857, in order to avoid any increase of the excitement already attending the presidential election. The essential points for decision were two: 1. Had the federal circuit court jurisdiction, that is, was Dred Scott a "citizen of Missouri" in the view of the constitution? 2. If the court had jurisdiction, was its decision against Dred Scott correct? In considering these two questions it must be remembered that federal courts are required by the act of 1789, section 25, to follow the statutes and constructions of the respective states wherever they come in question, unless they are in conflict with the constitution.

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—IV. DECISION. The Missouri supreme court had decided, on the evidence submitted, that Dr. Emerson's residence in Illinois and Wisconsin was only temporary and in obedience to the orders of his government; that he had no intention of changing his domicile; and that, whatever might be Dred's status while in Illinois, and Wisconsin, on his return to Missouri, the local law of Missouri attached upon him and his servile character redintegrated. On this general ground chief justice Taney, with the assent of justices Wayne, Nelson, Grier, Daniel, Catron and Campbell (McLean and Curtis dissenting), decided that the plaintiff in error was not a citizen of Missouri in the sense in which that word is used in the constitution; that the circuit court of the United States, for that reason, had no jurisdiction in the case and could give no judgment in it; and that its judgment must, consequently, be reversed and a mandate issued, directing the suit to be dismissed for want of jurisdiction.

I.389.5

—Had the supreme court confined its action to a denial of jurisdiction in this case on the ground taken by the Missouri state supreme court, the decision would probably have been accepted generally as law, however harsh, in the case of slaves removed temporarily from state jurisdiction and then brought back. But, impelled, as has been charged, by a superserviceable desire to forward the interests and designs of slaveholders in the territories, or as is much more probable, by the wide sweep taken by counsel on both sides in their arguments, the chief justice and the assenting justices proceeded to deliver a course of individual lectures on history, polities, ethics and international law, the exact connection of which with the legal subject matter in hand it was in many cases difficult for the justices themselves to make perfectly clear. In these additions to the denial of jurisdiction lay the interest, importance and far-reaching consequences of the Dred Scott decision. These additions were a denial of the legal existence of the African race, as persons, in American society and constitutional law, a denial of the supreme control of congress over the territories, and a denial of the constitutionality of the Missouri compromise—1. Sandford's plea, given above, denied the circuit court's jurisdiction, on the ground that Dred was of the African race, as if that necessarily implied lack of citizenship. The circuit court had overruled the plea, and, although this was not one of Dred Scott's exceptions, the supreme court reverted to the plea and sustained it. The opinion of the court asserted that the African race, for over a century before the adoption of the constitution, had been considered as a subordinate class of beings, so far inferior that they had no rights which the white man was bound to respect; that they had not come to this country voluntarily, as persons, but had been brought here as merchandise, as property, as things; that they held that position in the view of the framers of the constitution, and were not included in the words "people" or "citizens" in the declaration of independence, the articles of confederation, or the constitution; and that, even when emancipated, they retained that character, and were not, nor could by any possibility ever become, citizens of the United States or citizens of a state in the view of the constitution, capable of suing or being sued, or possessed of civil rights, except such as a state, for its own convenience and within its own jurisdiction, might choose to grant them. Of the two dissenting justices, McLean denied, and Curtis admitted, that the plea of Sandford was properly before the supreme court and might be examined on writ of error; but both relied on the plain distinction between "citizens" and "electors," on the constitution's repeated mention of negroes as "persons," and on the undoubted fact that free negroes, at the time of the adoption of the constitution, had been not only citizens but voters in at least five of the states, and were still voters except where, as in North Carolina and New Jersey, the right to vote had been taken away by a subsequent change in the state constitution; and held that, even though free negroes might not be electors in any particular state, they were still always citizens, capable of suing and being sued, at least on the same footing with women and minors.

I.389.6

—2. The arguments of counsel had brought up the question of the power of congress (under article IV., §3, ¶ 2, of the constitution) to "make all needful rules and regulations respecting the territory or other property belonging to the United States." On this point the opinion of the court held that this language, by previous decisions and the plain sense of the words, referred only to the territory and property in possession of the United States when the constitution was adopted, and not to Louisiana and other territory afterward acquired; that the right to govern these last-named territories was only the inevitable consequence of the right to acquire territory, by war or purchase; that congress, therefore, had not the absolute and discretionary power to make "all needful rules and regulations" respecting them, but only to make such rules and regulations as the constitution allowed; that the right of every citizen to his "property," among other things, was guaranteed by amendment V.; that slaves were recognized as "property" throughout the constitution; and that congress had therefore no more right to legislate for the destruction of property in slaves in the territories than to legislate for the establishment of a form of state religion there. On the contrary, the dissenting opinions held that slavery was valid only by state law, and that a slave was "property" only by virtue of state law; that the constitution was explicit on this point (as, "no person held to service or labor in one state, under the laws thereof," etc.); that the slave, when taken by the master's act out of the jurisdiction of the state law which made him a slave, at once lost his artificial character of property and resumed his natural character of a person; and that the state law could not accompany him to the territories. Of course this reasoning, which it seems impossible to overthrow, would necessarily have made all the territories, south as well as north of latitude 36° 30', free soil, unless slavery should be established there by act of congress or by popular agreement in forming state constitutions.

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—3. From the preceding doctrine the opinion of the court necessarily held that the act of March 6, 1820, commonly known as the Missouri compromise, which prohibited slavery in the province of Louisiana north of latitude 36° 30' and outside of Missouri, was an unconstitutional assumption of power by congress, and was therefore void and inoperative, and incapable of conferring freedom upon any one who was held as a slave under the laws of any one of the states, even though his owner had taken him to the territory with the intention of becoming a permanent resident. Mr. Justice Catron, dissenting from the majority's denial of the power of congressional legislation for the territories, yet denied that an act of congress could override article 3 of the Louisiana treaty of 1803, which guaranteed to the inhabitants of the ceded territory the full enjoyment of their liberty and property until states should be formed there; and also held the Missouri compromise void, as violating the constitutional equality of citizens of the different states in their rights, privileges and immunities. On the contrary, the two dissenting justices held that the majority had "assumed" power to attack the Missouri compromise; that that act was a proper instance of the power of congress to legislate in full for the territories, which had been exercised without question since the foundation of the government; that it was no violation of the equality of citizens for the reasons above assigned; and that the Louisiana treaty had nothing to do with the question, since the organization of the slave states of Louisiana, Arkansas and Missouri had embraced every slave in the entire ceded territory.

I.389.8

—When a court has decided a question or case before it, any further remark or expression of opinion, even by the supreme court of the United States, on a point not legally involved, is an obiter dictum, of no great weight for other courts as an authority or precedent, and of no weight at all for the public at large. How far the voluminous opinions of the Dred Scott decision were obiter dicta after the denial of the circuit court's jurisdiction is at least doubtful. Chief justice Taney and justice Wayne endeavor to establish the connecting link between the denial of jurisdiction and the attack on the Missouri compromise upon the ground of the difference between writs of error to a state court and to a federal circuit court. In the former case the inquiry would be whether the supreme court had jurisdiction to review the case, and, if not, the writ would be at an end; but in the latter case the inquiry would be whether the circuit court had jurisdiction, and to settle this the whole case, including the merits, was open to inspection. But the following extract from judge Curtis' opinion deserves consideration: "I dissent, therefore, from that part of the opinion of the majority of the court in which it is held that a person of African descent can not be a citizen of the United States; and I regret that I must go further, and dissent both from what I deem their assumption of authority to examine the constitutionality of the act of congress commonly called the Missouri compromise act, and from the grounds and conclusions announced in their opinion. Having first decided that they were bound to consider the sufficiency of the plea to the jurisdiction of the circuit court, and having decided that this plea showed that the circuit court had not jurisdiction, and consequently that this is a case to which the judicial power of the United States does not extend, they have gone on to examine the merits of the case as they appeared on the trial before the court and jury, on the issues joined on the pleas in bar, and so have reached the question of the power of congress to pass the act of 1820. On so grave a subject as this I feel obliged to say that, in my opinion, such an exertion of judicial power transcends the limits of the authority of this court, as described by its repeated decisions and, as I understand, acknowledged in this opinion of the majority of the court. * * A great question of constitutional law, deeply affecting the peace and welfare of the country, is not, in my opinion, a fit subject to be thus reached."

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—The Dred Scott decision was the last attempt to decide the contest between slavery extension and slavery restriction by form of law, and the course of events began at once to tend with increasing rapidity toward a decision by force. (See SECESSION, SLAVERY.)

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—The Dred Scott decision was finally overturned by the first section of the 14th amendment, which made "all persons born or naturalized in the United States, and subject to the jurisdiction thereof," citizens of the United States, and of the state wherein they reside. (See CIVIL RIGHTS BILL; CONSTITUTION, IV.)

The cuneiform inscription in the Liberty Fund logo is the earliest-known written appearance of the word "freedom" (amagi), or "liberty." It is taken from a clay document written about 2300 B.C. in the Sumerian city-state of Lagash.